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USCIS Broadens Categories for Deportation Under New Policy Guidance and Will Issue Notices of Appearance

On June 28, the U.S. Citizenship and Immigration Service (USCIS) issued new policy guidance that expands the circumstances under which an adjudicator will generate a Notice to Appear (NTA), a charging document that commences removal proceedings and the deportation process, and instructs its recipient to appear before an immigration judge. The guidance broadens USCIS authority to initiate NTAs in cases of fraud, criminal activity, or when an immigrant applicant is denied an immigration benefit and accrues unlawful presence. The guidance aligns the agency with current immigration enforcement priorities under Executive Order 13768, Enhancing Public Safety in the Interior of the United States.

Traditionally, under 2011 policy guidance, USCIS referred deportation matters to Immigration Customs Enforcement (ICE). Now, USCIS will issue NTAs on its own. The new guidance also states that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States”. Thus, applicants for U.S. citizenship, green card, or extension or change of status petitions who are ultimately denied could face deportation, whether they are business visitors, H-1B visa holders, or international students.

This policy shift may impact the American workplace if immigrant workers facing deportation lose their jobs due to deportation, and employers must rehire.

To compound the increase of deportation proceedings that the policy might spark, immigration courts and judges currently face over 700,000 backlog cases, almost double the 400,000 cases held in 2014 by the U.S. Department of Justice Executive Office of Immigration Review.

The new USCIS guidance exempts most Deferred Action for Childhood Arrivals recipients.